On October 10, 2018, the Senate voted 99-1 to approve the 2018 reauthorization of the Water Resources Development Act (WRDA) clearing the measure for the President’s expected signature. Previously, the reauthorization was approved in the House by a voice vote, under a procedure for “suspending the rules” for the bill’s consideration that is saved for non-controversial legislation with strong support. The bill is titled “America’s Water Infrastructure Act of 2018” (AWIA, S. 3021) and contains a range of provisions which are specific to tribes or may be of interest to tribes.
Background. WRDA provides the authorizations for a range of water infrastructure projects and programs including those addressing water storage, irrigation systems, maintenance of dams, hydropower, drinking water and waste water systems, reservoirs, levees, and ports. AWIA is organized into the following titles:
- TITLE I—WATER RESOURCES DEVELOPMENT;
- TITLE II—DRINKING WATER SYSTEM IMPROVEMENT;
- TITLE III—ENERGY; and
- TITLE IV—OTHER MATTERS.
Within each title, WRDA reauthorizations usually contain some sections specific to tribes (generally); some sections which include tribes or could impact tribes; and some sections which, for example, address a water rights settlement for a particular tribe. With respect to AWIA, we highlight a number of these sections below. For further reference, we also attach the full Section by Section summary of AWIA prepared by the staff of the Senate Environment and Public Works Committee.
Sections Specific to Certain Tribes.
- Sec. 1133. – Columbia River. – Clarifies the Secretary of the Army’s obligations to provide assistance to those Indian tribes displaced as a result of the of the construction of the Bonneville, John Day and Dalles dams in Oregon and Washington.
- Sec. 2001. – Indian Reservation Drinking Water Program. – Authorizes the Environmental Protection Agency (EPA) to make grants ($20 million, per fiscal year), through FY 2022, to carry out a program consisting of 10 projects for Indian tribes on reservations in the Upper Missouri River Basin and 10 projects for Indian tribes on reservations in the Upper Rio Grande Basin to connect, repair, or expand existing drinking water services or improve water quality, pressure, or water services.
- Sec. 4311. – Blackfeet Water Rights Settlement. – Adjusts the authorization for the Blackfeet Water Rights Settlement to allow the Blackfeet Tribe to receive access to funding in a timely manner.
Sections Specific to Tribes, Generally.
- Sec. 1129. – Inclusion of Tribal Interests in Project Consultations. – Directs the Secretary of the Army to carry out all existing tribal consultation policies, regulations and guidance.
- Sec. 1155. – Indian Tribes. – Provides a more comprehensive definition of federally recognized Indian tribes that may work in partnership with the Army Corps of Engineers on water resources development projects. Specifically, tribal organizations, as defined in the Indian Self-Determination and Education Assistance Act, are now eligible.
- Sec. 1156. – Inflation Adjustment of Cost-Sharing Provisions for Territories and Indian Tribes. – The Secretary of the Army is required to waive local cost-sharing requirements (up to $200,000 and indexed for inflation) for all studies and projects for tribes and territories. This section updates the date used to calculate inflation. (For reference, the amount was $200,000 in 1986.)
- Sec. 1157. – Corps of Engineers Continuing Authorities Program. – Subsection (i) increases the limit for the federal share of the cost of a water resources development project authorized by the Tribal Partnership Program from $10 million to $12.5 million. Expands the authorization to not only apply to a “project” but alternately to a “separable element of a project”. Stipulates that if the federal share of the cost of the “project or separable element of a project” is more than $12.5 million, then a law must be enacted to specifically authorize it.
- Sec. 4312. – Indian Irrigation Fund Reauthorization. – Extends the authorization for the Indian Irrigation Fund, at current levels ($35 million plus accrued interest, per fiscal year), through FY 2028.
- Sec. 4313. – Reauthorization of Repair, Replacement, and Maintenance of Certain Indian Irrigation Projects. – Extends the authorization for the maintenance, repair, and replacement of irrigation projects funded by the Indian Irrigation Fund through FY 2028 and continues the biennial reporting requirements.
- Sec. 4314. – Indian Dam Safety Reauthorization. – Extends the authorization for the High Hazard Indian Dam Safety Deferred Maintenance Fund at current levels ($22.7 million, plus accrued interest, per fiscal year) and the Low Hazard Indian Dam Safety Deferred Maintenance Fund at current levels ($10 million, plus accrued interest, per fiscal year), through FY 2030. Extends the authorization for the maintenance, repair, and replacement of dams funded by the Funds through FY 2030. Extends the Flood Plain Management Pilot Program, at current levels ($250,000 per fiscal year, from either Fund), through FY 2026.
Sections Which Include Tribes or may be of Interest to Tribes.
- Sec. 1114. – Assistance Relating to Water Supply. – Directs the Secretary of the Army to provide assistance to municipalities whose water supply has been adversely affected by construction carried out by the Corps of Engineers.
- Sec. 1131. – Ice Jam Prevention and Mitigation. – The previous WRDA reauthorization created a pilot program to authorize the Secretary of the Army from FY 2017-FY 2022 to carry out certain projects under the Flood Control Act of 1948 to prevent and mitigate flood damage associated with ice jams. This section of AWIA removes the time limitation, doubles the number of projects and requires that “not fewer than one” project be carried out on a reservation “that serves more than one Indian tribe.”
- Sec. 1214. – Community Engagement. – Directs the Secretary of the Army to furnish a report on any potential disproportionate and adverse health or environmental effects of programs, policies, and activities of the Army Corps of Engineers related to water resources development projects on minority communities, low-income communities, rural communities, and Indian tribes. The report is to include any recommendations of the Secretary for addressing such effects, including recommended changes to the statutory or regulatory authorities of the Corps of Engineers, or changes to the policies or guidance of the Corps of Engineers.
- Sec. 4103. – Technical Assistance for Treatment Works. – Authorizes the EPA to make grants ($25 million, per fiscal year) through FY 2023, to qualified nonprofit organizations to provide technical assistance relating to achieving Clean Water Act compliance, or obtaining financing for wastewater infrastructure in rural, small, and tribal municipalities.
- Sec. 4105. – Authorization of Appropriations for Columbia River Basin Restoration. – Extends the authorization for the Columbia River Basin program ($30 million, per fiscal year) through FY 2021.
- Sec. 4107. – Assistance for Individual Household Decentralized Wastewater Systems of Individuals with Low or Moderate Income. – Authorizes assistance for the repair or replacement of existing individual household decentralized wastewater treatment systems, or the connection to a publically owned treatment works, in low or moderate-income households. Requires the EPA Administrator to furnish a report to Congress on the prevalence throughout the United States of low- and moderate-income households without access to treatment works.
- Sec. 4305. – Regional Liaisons for Minority, Tribal, and Low-Income Communities. – Requires each regional office of EPA to designate one employee to be the point of contact for minority, tribal, and low-income communities.
Please let us know if we may provide additional information about America’s Water Infrastructure Act of 2018 or assistance preparing a priority list in advance of the next Water Resources Development Act reauthorization.